Study On The Discretioary Mitigated Punishment

As a part of the sentencing system, Discretioary Mitigated Punishment is opposite to Legal Mitigated Punishment. In theories, it is also called Zhuo-Ding(Zhuo-Qing) Mitigated Punishment, Cai-Liang(Cai-Pan) Mitigated Punishment, Special Mitigated Punishment, Outlaw Mitigated Punishment, Po-Ge Mitigated Punishment, and many other titles. Among those titles, this text inclines to Zhuo-Liang Punishment. Discretioary Mitigated Punishment is prescried by Article 59 Section 2 in Criminal Law 1979 and Article 63 Section 2 in Criminal Law 1997 of P.R.C. As to explain Discretioary Mitigated Punishment accurately, it is necessary to distinguish it from Discretioary Factors in Commutation of Sentence,Discretioary Circumstances of Sentencing, Can be Mitigated etc.As a sentencing system of which is for the defendant, Discretioary Mitigated Punishment belongs to lightly punishing mechanism in the criminal law mechanism. It has the function of reducing bad effect of severe punishment in legislation. Discretioary Mitigated Punishment is adopted extensively in the world besides Mainland of P.R.C. In Criminal Law 1997 of P.R.C, severe punishments are prescribed, and the decriminalization mechanism does not run smoothly, the function of punishing lightly should be highly regarded as to produce justice in concrete cases. Discretioary Mitigated Punishment does not run against the principle of legality, and it agrees with spirit of the criminal policy of combining punishment with leniency.Article 63 Section 2 in Criminal Law 1997 of P.R.C reads: In cases where the circumstances of a crime do not warrant a mitigated punishment under the provision of this law, however, in the light of the special circumstances of the case, and upon verification and approval the Supreme People's Court, the criminal may still be sentenced to a punishment less than the prescribed punishment. On the basis of hermeneutics theory,In cases where the circumstances of a crime do not warrant a mitigated punishment under the provision of this law belongs to the entity elements of Discretioary Mitigated Punishment. But it is open to different interpretations,so it should be revised in legislation, the special circumstances of the case should not only be interpreted for special factors regarding to national defense, diplomacy, race and religion etc, but should also include all the other conditions which should be give a slight sentence besides Legal Mitigated Punishment. On the basis of legislation theory, the provision of the special circumstances of the case is proper. The procedure requirment of upon verification and approval of the Supreme People's Court is too strict, and it gives birth to series of problems. Discretioary Mitigated Punishment should be decided by the trail committee of all ranks of courts, or by the Senior Court. The extent and limit of the Discretioary Mitigated Punishment should be limited, not only on the basis of hermeneutics theory but also on the basis of legislation theory.